Wilson v Ferguson [2015] WASC 15 was a decision arising from a breach of confidence claim. The claimant obtained an order for compensation for embarrassment, anxiety and distress flowing from the publication on Facebook by her former partner of photographs / video of a sexual nature. An injunction was also ordered.

On the expert evidence issue, the trial judge ruled that a statement and supplemental statement of Ms Dougall, a registered psychologist, were inadmissible except to the extent that they described the counselling sessions which were undertaken: [98]. The claimant sought to adduce the balance of the statements in order to prove that the publication of the photographs and videos caused anxiety, embarrassment and distress to the plaintiff, and that the time which she took off work was reasonable: [99].

The court said at [101] – [102]:

101 As Hall J has recently observed, psychology in the broad sense is not a field of specialised knowledge such that any opinion offered by a psychologist is necessarily admissible. Evidence of a psychologist will not be expert opinion if it was merely a description of human behaviour about which the court is capable of forming its own view. There must be something in the evidence of the psychologist that draws on a reliable body of knowledge or experience of the kind to which I have referred.

102 There was no suggestion in the evidence that the plaintiff suffers from any recognised psychiatric or psychological disorder. The subject of Ms Dougall’s opinion, therefore, was the reaction of an ordinary mind to the publication of the photographs and videos. In my view, the plaintiff’s reaction to the publication of the photographs and videos and the reasonableness of that reaction are matters within ordinary human experience. I do not require the assistance of a psychologist to reach factual conclusions about those matters. In my view, therefore, Ms Dougall’s opinions about those matters are not admissible as expert opinion evidence.

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